So - you may be considering the purchase of existing retail space or property in Massachusetts for redevelopment. Sure, you have many considerations relative to the financial and building issues. However, have you considered the likelihood of the existence of some type of contamination on the property that you would like to purchase due to its past use(s) or contamination that exists on an abutting or neighboring property that has or could impact your property? Maybe the contamination is located below the ground surface so you cannot see it. Hopefully, you performed some degree of due diligence prior to purchasing the property that would identify the contamination. Maybe, however, you purchased a "clean" property but had, for example, a release of heating fuel from your above or underground storage tank.
Unfortunately, in any of these or similar cases, you would be considered a Potentially Responsible Party under Massachusetts General Law (MGL) Chapter 21E, Section 5, if you owned and/or operated the property if contamination is identified that is reportable to the Massachusetts Department of Environmental Protection (MADEP) under the Massachusetts Contingency Plan (MCP) (310 CMR 40.0000). The MCP is a regulation that governs the assessment and cleanup of contaminated sites in the state. The MCP requires Responsible Parties to report and take necessary response actions at properties where there is or has been a release of oil and/or hazardous material.
In 1993, Massachusetts created a privatized program (the LSP program) for the cleanup of contaminated sites. As such, you would need to retain a Licensed Site Professional (LSP) to manage, supervise, oversee, or actually perform the necessary response actions at a contaminated property that has been reported to the MADEP under the MCP. LSPs are persons licensed by the Board of Registration of Hazardous Waste Site Cleanup Professionals because they have demonstrated that they have the necessary education and relevant professional experience to render opinions and services associated with the assessment and cleanup of contaminated sites. They are required to uphold a Response Action Performance Standard (RAPS), which is defined in the MCP as "...the level of diligence reasonably necessary to obtain the quantity and quality of information adequate to assess a site, to evaluate remedial action alternatives and to design and implement appropriate remedial action..."
So, how does one find an LSP? You may know of someone who has had the same experience as you and can recommend an LSP that they have been happy with. Also, the MADEP has prepared a guide for those parties looking to retain an LSP. It can be found at this website: [http://www.mass.gov/dep/cleanup/laws/lsp.doc]. This guide provides suggestions for hiring an LSP, contracting with an LSP, and changing LSPs, if necessary. It is important that you feel comfortable with the LSP that you hire since he/she will gather and evaluate information about the contamination on your property, likely by way of sampling and testing of various media, and guide you through the MCP process. He or she will advise you on state regulatory requirements and recommend actions that are appropriate for your specific situation. Depending on the complexity of the contamination, it will be necessary for you to submit various documents to the MADEP in a timely manner. Your LSP will prepare these and other necessary documents. If it is determined that cleanup is necessary, the LSP with be able to evaluate alternatives that are technically sound while taking into consideration their costs. Whether or not cleanup is performed, your LSP will ultimately submit a final opinion to MADEP stating that your property meets the requirements of the MCP.
Joseph Jammallo, LSP, PG is a principal and co-owner of Cushing, Jammallo & Wheeler, Inc. with offices located in Clinton and Danvers, Mass.